Judge calls for confidential review of Gibbons’ e-mails

By Cy Ryan

Thursday, Dec. 4, 2008 | 11:19 a.m.

CARSON CITY – Private e-mail messages sent over a government computer aren’t automatically public records, District Judge Bill Maddox ruled in a lawsuit seeking the release of messages sent by Gov. Jim Gibbons.

Maddox decided today that there should be a confidential review of the hundreds of e-mails sent and received by Gibbons during the first five months of this year to determine which ones may be public records.

Maddox initially rejected the Reno Gazette-Journal’s request to force the governor’s office to turn over a log or index of the messages so it would determine what ones might contain government business.

The judge said giving the newspaper a log of times, persons and a brief description of the e-mail would mean the Reno Gazette-Journal “was half way there” in learning what might be confidential information or just private matters.

The judge heard 45 minutes of arguments from Reno lawyer Scott Glogovac representing the newspaper and Jim Spencer, chief of staff of the state Attorney General’s Office, representing the governor.

Maddox is leaving office in January and will turn the case over to District Judge Todd Russell. He said he will have his discovery commissioner David Nielsen examine the e-mails to determine which ones might be a public record.

Glogovac will have a chance to argue that they should be disclosed, he said. He also gave Glogovac until Dec. 19 to file an additional brief defining what he believes are public records.

The suit was filed after Anjeanette Damon, political reporter for the Reno Gazette Journal, filed a request to see the e-mail traffic between Gibbons and 10 individuals. She then broadened the request to include all the e-mails in the first five months of this year.

The governor issued a blanket denial. And the newspaper filed suit.

Glogovac argued the governor’s office should provide a list of the e-mails, who they involve and a brief description of their subject. He said there must be a “balancing test” for the newspaper to have some part in the review and not have it done only in the office of the judge.

The judge expressed concern that public officials may be driven to buy their own computers and lines to keep communications private and said, “I’m troubled by that.” For instance, he said any e-mail exchange between Gibbons and his estranged wife Dawn is purely personal and should not be disclosed.

Glogovac argued however his side has no chance to determine what may be personal under this ruling.

Spencer told the judge the newspaper is not entitled to non-public records. E-mails, he said are used in place of a telephone in many instances. And the state’s Public Records Committee has determined that some records can be destroyed if they are obsolete.

Spencer won his point that the e-mails should be turned over to the judge for a confidential review by either the judge or a special master. He said the newspaper should not see these records until the judge determines they may be public.

Maddox said the case might end up in the Nevada Supreme Court.